The Congress of South African Trades Union (Cosatu) on Tuesday threatened to launch a court challenge against the Protection of Information Bill if it were passed without changes to ensure transparency and protect whistle-blowers.
“This Bill is a significant setback for the protection of openness, transparency and accountability guaranteed by our Constitution,” Cosatu said.
Apart from the fundamental concerns the union federation had with the draft law, “no compelling reasons have been provided to explain why this Bill is being rushed through Parliament”.
Cosatu said it had written to its alliance partner, the ANC, to request a meeting to discuss the controversial Bill, which has provoked an outcry over the sweeping powers it would give the state to classify information.
“However, if the Bill is passed without major amendments to protect whistle-blowers and South Africans’ right to access information of public interest, the federation will refer the Bill to the Constitutional Court for a ruling on its constitutionality,” Cosatu spokesperson Patrick Craven said.
He said the Bill failed to protect workers who sought to expose corruption and lent itself to abuse to conceal wrongdoing.
“It could be abused to cover up information on corruption and misuse of public resources and to criminalise whistle-blowers who try to expose crime and corruption.”
One of Cosatu’s biggest objections to the Bill is the lengthy prison sentences prescribed for anybody who comes into possession of a classified document and passes it on to anybody but the police. The provision has already been widely criticised as placing a restraint on media freedom.
But it said it would affect workers who became aware of irregularities, and compel trade unions to report members, who uncovered classified evidence of corruption, for violating the law.
Like rights activists and the political opposition, it also objected to ANC lawmakers’ insistence that the Bill give all organs of state the power to classify data.
There are 1 001 bodies believed to be covered by this definition, ranging from all state departments to state-owned enterprises and museums.
“Many of these are ‘private’ entities such as oil refineries,” Cosatu said.
“There is extensive experience of oil refineries obstructing access to information about public health violations on the pretext that this would contravene state security legislation. This Bill would only further entrench such practices.”
The beat goes on
Deliberations on the Bill continued in Parliament on Tuesday, and opposition parties signalled that a constitutional challenge was all but a foregone conclusion.
Dene Smuts from the Democratic Alliance objected to the ANC using its majority vote to retain a clause that would allow state organs to classify “integral file blocks or categories of state information”.
“The process is so unconventional … the process you have adopted is to outvote us. We know we are not going to move each other. It will be one of the grounds for challenge for us eventually,” she said.
The chairperson of the committee drafting the Bill, Cecil Burgess, declared last week that debate could not continue indefinitely and that disagreements would be resolved by a vote.
The step drew renewed protest from the Right 2 Know Campaign, which said the Bill would be “ripe for constitutional challenge” if pushed through Parliament in its present form.
If the committee keeps to its deadline, the drafting process could be finalised by late June.
ANC MPs made some concessions on Tuesday, notably proposing the creation of an independent panel that reports to Parliament to review various aspects of classification.
“It is also proposed that this panel would report its findings to the Joint Standing Committee on Intelligence annually, or as and when it is required,” ANC MP Luwellyn Landers said.
The DA welcomed the proposal as “excellent”.
However Landers again made plain that the party would not budge on insistent opposition calls to include a public interest defence in the Bill to protect whistle-blowers and journalists.
This would allow somebody charged with breaching the law to argue that he or she acted in the public interest. — Sapa